An Introduction to Documents of Freedom
In 1781, after the Americans won the Battle of Yorktown, the British General Charles Cornwallis surrendered, effectively ending the Revolutionary War. Tradition has it that, as Cornwallis was surrendering, the British military band played an old song called “The World Turned Upside Down.”
The world has turned upside down in many ways since then. The old social order—kings on top, others of royal blood one rung down, nobles in various hereditary ranks below them, the bishops of the state church often vying with the nobles, and the commoners at the bottom—once ruled the world (and not only in Europe). Today, political equality is the norm throughout the West and in most other societies as well.
Technologically, the world has been transformed in ways that the people of 1781 could never have imagined. Geopolitically, the small, fledgling American republic—population under 4 million as of 1781, the same as the city of Los Angeles today—has become the world’s only superpower. Economically, some countries that were once among the poorest of the poor (think Korea or Taiwan) have become among the richest.
And in all this radical change, the nation that won its independence at Yorktown has played a pivotal role. America was the first large-scale modern experiment with a republic in which everyone was a commoner. America was the engine of the Second Industrial Revolution of the late 1800s and of the continuing technological development since then, a place of remarkable invention and industry.
Whatever your views are of America’s role in the world, or of American government at home, this experience ought to leave you with a question: Why is it that America has had such influence over the past centuries? You need not be an American patriot to ask this question: Historians with no emotional ties to ancient Rome ask the same question about Rome’s influence 2000 years ago. The question about America is similar, but it’s also timelier and more practically important.
Something about the Constitution, for all its flaws (both its famous flaws and its less well-known ones), has made it one of the longest-lasting Constitutions in the modern world. Something about the Constitution, and the economic system and political culture that the Constitution helped maintain and build, has helped make the United States one of the most stable and prosperous countries in the world.
Something about all these things has helped America ride the wave of change that has swept the world in the last two centuries—and often to drive that wave—rather than being capsized, or swept into irrelevance and decline. This should make the American legal and political system deeply interesting to all; how much more so it should be to us as Americans.
These materials aim to help with the study of this system, and in the process they will often turn to the views of the Framers, both of the Constitution and of later amendments. The Framers were not saints; they were people of their time, with many (though not all) of the prejudices common in their time. And they made practical mistakes as well. For instance, their system for electing the president led to a political constitutional crisis a mere 11 years after the Constitution was ratified, and had to be corrected by a constitutional amendment (the Twelfth) a few years later.
Nonetheless, they were unusually farsighted and successful political thinkers. And, as importantly, their thinking helped create our governmental system. Whether or not you like all features of that system, to understand the system you have to understand its history, and especially the purposes and attitudes of its creators.
In these materials, you will see some recurring themes. First, as we mentioned, we will pay close attention to the views of the Founders—though not only to the views of the Founders.
Second, we will consider the possible purposes of government. Government can help protect our individual rights—rights to life, to liberty, to property—whether against criminals, against foreign invaders, or even against government officials themselves. Government can also spend tax money (property taken from each of us) to promote economic development, thus theoretically helping to create wealth and not just protect it. Government can also tax and regulate in order to yield more equal results, rather than just protecting rights to equal opportunity. At different times in our nation’s history, the government’s role has been seen as different, and at many times that role was hotly contested. We as Americans always have the opportunity to alter our government’s role.
Third, we will often ask: How can the government have the “energy” (Alexander Hamilton’s term) needed to accomplish its purposes, without becoming too mighty and thus oppressive? The Founders were obsessed with this, and rightly so. They deliberately chose to replace the too weak government under the Articles of Confederation with a considerably more muscular one under the Constitution. Nonetheless, much of the governmental structure that they created was aimed at checking the undue “encroachment” of government power.
Government power was generally split among the federal government and the states, with each checking the other. Indeed, the states were originally understood as the more powerful and important governmental units. Legislative power was split within Congress between the House and the Senate, with each checking the other, and with the concurrence of each chamber being required for a law to be enacted.
The Free Speech Clause, Free Press Clause, Assembly Clause, and Petition Clause of the First Amendment helped the citizens be a check on the government. The continued preservation of private property helped create alternate seats of power, with governmental power being only one; beyond that, citizens who have their own property and don’t need to rely on government employment or government benefits can be more effective checks on the government. Indeed, a thriving system of private enterprise protects liberty by giving ambitious citizens the options of fulfilling their ambitions in the marketplace, rather than in politics. Invasion of property rights, the Founders believed, had historically been a signal of looming invasion of other liberties. Even the Establishment Clause and Free Exercise Clause helped check government power, by preserving a source of moral authority and leadership—the many religious denominations within the United States—as a counterweight to the ideological influence of government and of majorities.
Fourth, we will often talk not about what should be the right result in any particular controversy (should there be government-funded health care? should same-sex marriage be allowed?), but rather about who should decide the matter. Should the decision be made by administrative officials, selected based on their supposed expertise, or by directly politically accountable lawmakers? Should it be made by the federal government or by state governments? Should it be made by Supreme Court justices or by legislators?
Fifth, we will sometimes turn to something that is outside the political system, but that the Founders recognized as foundational to a successful political system: what the Founders called the “virtue” of the people—their courage, their tolerance, their commitment to justice, their willingness to sacrifice and compromise for the common good, and their willingness to invest the time and energy into educating themselves about the pressing issues of the time. Without voters that have such virtue, there is no reason to think that the legislators elected by the voters will be honest, responsible, intelligent, and respectful of our rights.
And one of these virtues—a willingness to take the time and effort to educate yourself on the matters that you will, as a voter, have to evaluate—is the very thing that this class is aimed at cultivating.
“If a nation expects to be ignorant and free,” Thomas Jefferson wrote, “it expects whatever was and never will be.” It is our duty as citizens of a democracy to become informed citizens. And understanding the foundations of our legal and political system is a necessary step in that process.” (Thomas Jefferson to Charles Yancey, January 6, 1816)